By Alex Morgan and Hongyi Wen
WASHINGTON, D.C. – U.S. Attorney General Merrick Garland late last week filed a memorandum for the heads of civil litigation components and U.S. Attorneys regarding the civil settlement agreement and consent decrees with state and local governmental entities.
Congress has granted the Department of Justice the right to file lawsuits against state and local governmental entities if there is a violation of federal law. The Department of Justice generally seeks resolution with the entities to avoid litigation.
A resolution can be a settlement agreement or consent decree. A consent decree is signed by both parties to ensure independent judicial review and approval of resolution. Monitors are used as technical assistance and assessment of compliance for settlement agreement or consent decree.
This memorandum is meant to address general principles regarding the Department of Justice’s use of settlement agreements, consent decrees, and monitors in cases with state and local entities.
Through this memorandum, Garland is rescinding the 2018 memorandum and revising the Justice Manual that was previously changed due to the 2018 memorandum based on the newest memorandum.
“With limited exceptions, the Department has long placed authority to determine the form and substance of civil resolutions with state and local governmental entities in the heads of litigating components and U.S. Attorneys.”
Garland explains that the role to determine the form and substance of civil resolution has been precedently assigned to the heads of litigating components and U.S. Attorneys because they are 
most familiar with and competent with accessing different cases.
But the 2018 Attorney General memorandum added new conditions, requirements and restrictions on the use of settlement agreements, consent decrees, and monitors.
“A November 2018 Attorney General memorandum changed that Department practice by creating new review and approval conditions, and placing new restrictions and requirements, on the use of settlement agreements, consent decrees, and monitors in cases involving state and local governmental entities.”
Garland is abandoning the restrictions and conditions and returned to the traditional process.
“The Department will return to the traditional process that allows the heads of litigating components to approve most settlement agreements, consent decrees, and the use of monitors in cases involving state and local governmental entities.”
Based on the longstanding tradition, the approval authority will be given to the relevant Assistant Attorney General. The U.S. Attorneys may be appointed for the approval authority based on each case.
There are exceptions that the settlement agreement or consent decree must be referred to the Deputy Attorney General or the Associate Attorney General, if the component thinks that the resolution must be reviewed by Deputy Attorney General or the Associate Attorney General.
Garland quoted, “ If the component head ‘is of the opinion that[,] because of a question of law or policy presented … or for any other reason, the proposed [resolution] should receive the personal attention of the Deputy Attorney General or the Associate Attorney General, as appropriate.’ ”
Garland notes that to resolve civil matters with state and local governmental entities, it should be noted that the subject jurisdiction of the material allegations be notified and given the opportunity to respond. Before these entities grant approval of the presented consent decree, the Department attorneys must ensure that the remedies are designed to “protect federal interests”.
When deciding which type of resolution to pursue, a few factors are detailed in this Memorandum that are designed to help guide the decision-making in approval for a resolution. The factors to consider go beyond whether they are in the best interest of the federal government or the public. The factors in need of consideration for proper decision making are as follows:
Whether a jurisdiction’s unlawful conduct is widespread and likely of future violations, the time required to implement the proposed remedies and what the implementation of these remedies will require to last, whether the resolution is likely to gain court approval and the remedies are clear and well understood, and how the public interest will best be served by, as well as the transparency of the resolution.
Garland then details how monitors, if required to assess compliance with the agreement or decree, can be ensured as qualified, independent, and free of conflict of interest; or whether they will be needed at all.
By looking at the April 2016 memorandum regarding selection of monitors and the encouragement of “preparing component-specific guidance” or supplement to enhance the components, the Associate Attorney General will review the memorandum and provide recommendations to determine whether further guidance from monitors is necessary.
To sign up for our new newsletter – Everyday Injustice – https://tinyurl.com/yyultcf9
Support our work – to become a sustaining at $5 – $10- $25 per month hit the link:
